FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that a 16-page memorandum prepared by an attorney at the National Oceanic and Atmospheric Administration discussing the government's legal vulnerability as a result of a prior decision by the National Marine Fisheries Service to treat a 1994 amendment to the National Mammal Protection Act as doing away with the Public Display Permit requirement to provide a clinical necropsy report does not constitute secret law and, further, is protected by the attorney-client privilege and the attorney work-product privilege under Exemption 5 (privileges). Kollar-Kotelly's ruling shows a disturbing willingness of courts to expand the common interest doctrine in ways that undercut the adversarial distinction enunciated by the Supreme Court in Dept of Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001). The Animal Welfare Institute submitted FOIA requests to NOAA and NMFS for records concerning the agencies' decision that clinical necropsy reports were not required after the 2017 death of Tilikum, an orca whale who had been on display at Sea World in Orlando, Florida. Before Tilikum's death, AWI met separately with representatives from NOAA, NMFS, the Fish and Wildlife Service, and the Marine Mammal Commission to argue that the 1994 amendment did not affect the requirement to provide a clinical necropsy report in the Marine Mammal Protection Act. AWI prepared its own draft issue paper and told the agencies that although it had no intention to bring suit, it believed its position could be enforced under the Administrative Procedure Act. After Tilikum's death, AWI urged the agencies to require a clinical necropsy report on the whale's death. The agencies refused to change their position. A NOAA attorney prepared a memo in response to a request from NMFS's Office of Protected Resources supporting the agencies' position. AWI asked the agencies for a copy of the memo and after that request was denied, AWI filed FOIA requests pertaining to the decision. The agencies initially provided 58 files that had been previously processed for release pursuant to a separate FOIA request. The agencies then provided another 471 records with redactions. AWI only challenged the agency's decision to withhold the memorandum under Exemption 5. AWI argued that the memorandum constituted the agency's final decision in the Tilikum case and that, as a result, the agency was required to disclose it because it represented secret law. The underlying concern about the existence of secret law is that in a democracy, government agencies should not be relying on policy or legal decisions that are not publicly available. But as a practical matter, the deliberative process privilege protects agency deliberations leading to a decision. Once an agency makes a final decision it is no longer privileged because at that point it is no longer pre-decisional nor deliberative. AWI argued that the disputed memorandum represented the agency's final decision in the Tilikum case. Kollar-Kotelly found that the memo was a reaffirmation of the agency's current policy rather than a new decision. She pointed out that "given the pre-existing policy of non-enforcement, the draft memorandum served not to as a controlling statement of policy that Defendants relied on in discharging their mission. Instead, the draft memorandum constituted legal advice, created by NOAA counsel, advising Defendants of the legal ramifications of continuing their policy of non-enforcement in the face of legal arguments contained in Plaintiff's Issue Paper." She added that "Plaintiff has shown that the draft memorandum was used in support of only one decision, the decision not to require a necropsy report under Tilikum's permit. And, this was the precise decision on which the draft memorandum was requested to provide legal advice. Plaintiff has not shown that Defendants subsequently relied on the rationale in the draft memorandum when making other decisions. Accordingly, Plaintiff has not shown that withholding the draft memorandum will create a body of regularly-implemented secret law." She pointed out that "Defendants were entitled to rely on that legal advice in informing Plaintiffs that Defendants would not reverse their policy and enforce the necropsy requirements in Tilikum's permit," noting that "Defendants' use of the draft memorandum in this way does not transform the draft memorandum into a controlling statement of policy that Defendants repeatedly rely on in discharging their mission." Kollar-Kotelly considered whether the memorandum qualified for protection under the attorney-client privilege. She noted that "the Director of the Office of Protected Resources within NMFS requested from an attorney in NOAA's Office of General Counsel legal advice and analysis of the arguments made in an Issue Paper submitted by Plaintiff to Defendants. In making this request, the NMFS Director was acting in the capacity of a client, requesting legal advice from an attorney in NOAA's Office of the General Counsel. Accordingly, the draft memorandum produced in response to this request for legal advice and analysis falls under the protection of attorney-client privilege." She acknowledged that "not every communication between an attorney and a client â€" government or otherwise â€" is made for the purpose of securing legal advice or services." AWI contended that even if the attorney-client privilege applied, it was waived when the memo was shared beyond its privileged circle to staff at FWS, which is part of the Interior Department, and the Marine Mammal Commission, which is an independent agency. The agency asserted that both the consultant corollary and the common-interest doctrine expanded the privilege to FWS and MMC. Kollar-Kotelly explained that in its decision in Klamath, the Supreme Court had implicitly recognized the consultant corollary by distinguishing when an agency's interests were aligned with those of a third-party from those instances in which the third party's interests were adverse to those of the agency. Although she found no reason to conclude that the interests of FWS and MCC were adverse to those of NOAA and NMFS, she observed that regardless the agencies were protected by the common interest doctrine. She concluded that both agencies had a common interest. As to MMC, she observed that "MMC is tasked with ensuring that all agencies, including Defendants, adhere to the requirements of the MMPA. As such, MMC and Defendants have a common legal interest in the response to the findings and conclusions in Plaintiff's Issue Paper concerning the applicability of pre-1994 permit requirements." She added that AWI had included FWS and MCC in its prior discussions about the need for a clinical necropsy report. Kollar-Kotelly also found that the NOAA memo was protected by the attorney work product privilege. AWI argued that its Issue Paper had not been prepared as a preface to bringing suit against the agency and thus the memo had not been written in anticipation of litigation. Kollar-Kotelly disagreed. She observed that "it does not matter that Plaintiff had not made a specific threat of litigation against Defendants at the time the draft memorandum was prepared. After reading Plaintiff's draft Issue Paper, Defendants knew that Plaintiff had taken a position on the continued viability of Tilikum's permit requirements that directly contradicted Defendants' position. Following Tilikum's death, the question of the validity of the permit's necropsy requirement was ripe. With full knowledge of Plaintiff's interest and position, Defendants reasonably anticipated litigation and requested from counsel legal advice and analysis of the arguments made in Plaintiff's Issue Paper. . . Accordingly, despite the lack of an explicit threat from Plaintiff, the Court concludes that the draft memorandum was prepared in anticipation of litigation."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Attorney-client privilege, Exemption 5 - Privileges - Attorney work-product privilege compiled in anticipation of litigation

SUMMONS (4) Issued Electronically as to NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent) (zmd) (Entered: 01/10/2018)

2018-01-10

MINUTE ORDER GRANTING 3 Motion for Leave to Appear Pro Hac Vice of Attorney Sunny Tsou, in order for him to appear as co-counsel for Plaintiff, contingent on said attorney filing a declaration certifying familiarity with this Court's Local Rules by no later than JANUARY 17, 2018. Counsel shall promptly register for this Court's CM/ECF system. Signed by Judge Colleen Kollar-Kotelly on 1/10/2018. (lcckk3) (Entered: 01/10/2018)

2018-01-10

5

ORDER ESTABLISHING PROCEDURES FOR CASES ASSIGNED TO JUDGE COLLEEN KOLLAR-KOTELLY. Signed by Judge Colleen Kollar-Kotelly on 1/10/18. (DM) (Entered: 01/10/2018)

2018-01-23

6

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 1/12/18. Modified event on 1/24/2018 (znmw). (Entered: 01/23/2018)

2018-01-23

7

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION served on 1/12/2018 (Baur, Donald) (Entered: 01/23/2018)

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. NATIONAL MARINE FISHERIES SERVICE served on 1/16/2018 (Baur, Donald) (Entered: 01/29/2018)

2018-02-08

10

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 1/11/2018. Answer due for ALL FEDERAL DEFENDANTS by 2/10/2018. (Baur, Donald) (Entered: 02/08/2018)

ORDER: The parties will continue to discuss issues relating to this case and attempt resolution of such issues without litigation. A Joint Status Report is due by 4/3/2018. Signed by Judge Colleen Kollar-Kotelly on 03/13/18. (DM) (Entered: 03/13/2018)

MINUTE ORDER. The Court is in receipt of the parties' 16 Joint Status Report. The parties represent that they are meeting and conferring to narrow the issues in this case so that further litigation will not be necessary. They request an additional 21 days to do so. The Court ORDERS the parties to file a further Joint Status Report by no later than APRIL 24, 2018, updating the Court on the status of their discussions and whether any further litigation will be necessary. Signed by Judge Colleen Kollar-Kotelly on 4/3/2018. (lcckk3) (Entered: 04/03/2018)

Set/Reset Deadlines: Plaintiff's Cross Motion due by 8/9/2018. Response to Cross Motion due by 9/10/2018. Reply to Cross Motion due by 10/10/2018. Defendants' Summary Judgment Motion due by 7/9/2018. Response to Motion for Summary Judgment due by 8/9/2018. Reply to Motion for Summary Judgment due by 9/10/2018. (dot) (Entered: 04/25/2018)

2018-07-09

19

Consent MOTION for Extension of Time to File Defendants' Motion for Summary Judgment by NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (Haynes, Fred) (Entered: 07/09/2018)

2018-07-10

MINUTE ORDER. The Court is in receipt of Defendants' 19 Consent Motion for an Extension of Time to File Defendants' Motion for Summary Judgment. Defendants request an extension of time to file their summary judgment motion because they need additional time to prepare an agency declaration and because defense counsel is busy with other matters. This is the first request for an extension of this deadline and Plaintiff consents. Defendants' Consent Motion is GRANTED NUNC PRO TUNC. Defendants shall file their Motion for Summary Judgment by JULY 19, 2018. Plaintiff shall file its response to that Motion and Plaintiff's Cross-Motion for Summary Judgment by AUGUST 20, 2018. Defendants shall file their Opposition to Plaintiff's Cross-Motion and their Reply in support of their own Motion by SEPTEMBER 20, 2018. Plaintiff shall file its Reply in support of its Cross-Motion by OCTOBER 22, 2018. Finally, the Court notes that Defendants' Motion for an Extension was not filed in a timely manner. The Order Establishing Procedures in this case states that "[m]otions for extensions of time must be filed at least four (4) business days prior to the first affected deadline." ECF No. 5 at 3. The Court expects all future motions to be filed on time. Signed by Judge Colleen Kollar-Kotelly on 7/10/2018. (lcckk3) (Entered: 07/10/2018)

2018-07-10

Set/Reset Deadlines: Defendants shall file their Motion for Summary Judgment by 7/19/2018; Plaintiff shall file its response to that Motion and Plaintiff's Cross-Motion for Summary Judgment by 8/20/2018; Defendants shall file their Opposition to Plaintiff's Cross-Motion and their Reply in support of their own Motion by 9/20/2018; Plaintiff shall file its Reply in support of its Cross-Motion by 10/22/2018. (kt) (Entered: 07/10/2018)

MINUTE ORDER. The Court is in receipt of Plaintiff's 21 Consent Motion for Extension of Time. Plaintiff requests an extension of time to file its Opposition to Defendant's Motion for Summary Judgment and its Cross-Motion for Summary Judgment because the facts and legal issues are numerous and complex, because Plaintiff's counsel is busy with other matters, and because Plaintiff's counsel and certain declarants will be out of the office on leave. This is the second request for an extension of this briefing schedule, but this is the first request from Plaintiff. Defendants consent. Plaintiff's Motion is GRANTED. Plaintiff shall file its Opposition to Defendant's Motion for Summary Judgment and its Cross-Motion for Summary Judgment by no later than SEPTEMBER 4, 2018. Defendants shall file their Reply in Support of their Motion for Summary Judgment and their Opposition to Plaintiff's Cross-Motion for Summary Judgment by no later than OCTOBER 5, 2018. Plaintiff shall file its Reply in Support of its Cross-Motion for Summary Judgment by no later than NOVEMBER 5, 2018. Signed by Judge Colleen Kollar-Kotelly on 8/8/2018. (lcckk3) (Entered: 08/08/2018)

2018-08-08

Set/Reset Deadlines: Plaintiff's Cross Motion due by 9/4/2018. Response to Cross Motion due by 10/5/2018. Reply to Cross Motion due by 11/5/2018. Plaintiff's Response to 20 Motion for Summary Judgment due by 9/4/2018. Reply to Motion for Summary Judgment due by 10/5/2018. (dot) (Entered: 08/10/2018)

Consent MOTION for Extension of Time to File Defendants' Reply Memorandum in Support of Their Motion for Summary Judgment and Their Opposition to Plaintiff's Cross-Motion for Summary Judgment by NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (Haynes, Fred) Modified relief on 10/1/2018 (ztd). (Entered: 09/28/2018)

2018-10-01

MINUTE ORDER. The Court is in receipt of Defendant's 29 Consent Motion for Extension of Time to File Defendant's Reply Memorandum in Support of Their Motion for Summary Judgment and Defendants' Opposition to Plaintiff's Cross-Motion for Summary Judgment. Defendants' reply memorandum in support of its motion for summary judgment and its opposition to Plaintiff's cross-motion are currently due October 5, 2018. Defendant seeks an extension of time due to unanticipated emergency litigation which has required defense counsel's attention. Defendants' 29 motion is GRANTED. Defendants shall file their Reply in Support of their Motion for Summary Judgment and their Opposition to Plaintiff's Cross-Motion for Summary Judgment by no later than OCTOBER 15, 2018. Plaintiff shall file its Reply in Support of its Cross-Motion for Summary Judgment by no later than NOVEMBER 15, 2018. Signed by Judge Colleen Kollar-Kotelly on 10/1/2018. (lcckk3) (Entered: 10/01/2018)

2018-10-01

Set/Reset Deadlines: Defendants shall file their Reply in Support of their Motion for Summary Judgment and their Opposition to Plaintiff's Cross-Motion for Summary Judgment by no later than 10/15/2018; Plaintiff shall file its Reply in Support of its Cross-Motion for Summary Judgment by no later than 11/15/2018. (kt) (Entered: 10/01/2018)

2018-10-15

30

Memorandum in opposition to re 23 Cross MOTION for Summary Judgment by Plaintiff filed by NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION. (Attachments: # 1 Exhibit A - O'Brien Declaration, # 2 Exhibit B - Response to Plaintiff's Statement of Additional Material Facts as to Which There Is No Genuine Dispute)(Haynes, Fred) (Entered: 10/15/2018)

Set/Reset Deadlines: Joint Status Report due by 3/29/2019, informing the Court as towhether or not judicial action is requested on Defendants withholding of the 34 records relatedto the draft memorandum. (dot) (Entered: 02/28/2019)